Even with financial and healthcare powers of attorney, there may be times when a court-ordered guardianship is needed for individuals unable to make decisions for themselves.
“A power of attorney does not have to be court-ordered. Power of attorney documents can be executed without court involvement and financial powers of attorney may be activated by the individual prior to any incapacity,” said attorney Tony Gingrasso. “A power of attorney for healthcare and/or finances may help avoid the need for a guardianship.”
When power of attorney documents are in place the need for a guardianship occurs when the person who may not be competent to make decisions on his or her own objects to the decisions made by the agent under the power of attorney.
“A guardianship is appropriate in situations where an impairment in decision-making rises to the legal standard of incompetence,” Gingrasso said. “If the person can no longer live independently and an impairment interferes with his or her ability to make appropriate decisions, or is in danger of being exploited because of an impairment, it may reach that standard.”
The agent under the power of attorney may petition for a guardianship in the county in which the individual resides. When a petition is filed, a doctor is required to evaluate the individual and report to the court regarding the extent of the impairment and its impact on the individual’s decision-making. A guardian ad litem is also appointed to advocate for the best interest of the party for whom guardianship is sought.
After a hearing is held, a judge may then order the guardianship and appoint the proposed guardian. Once appointed the guardian has certain duties, including the requirement to file annual reports on the individual’s condition.
“The court tailors the guardianship to the individual’s needs,” Gingrasso said. The guardianship may be for the person (physical health and safety) and/or the estate (property and finances). “The person requesting the guardianship may also file a petition for protective placement, asking the court to order the individual be placed in the least restrictive setting possible.”
Guardians may be a family member or friend. If a family member or friend cannot be identified, the guardian may be a volunteer, meaning they serve without pay, or a corporate guardian, who provides guardianship services for a fee.
Information provided by Tony Gingrasso, attorney at Johns, Flaherty & Collins. For an estate planning lawyer in La Crosse, call him at 608-784-5678.